Amerisure Insurance Company v. Ming et al

Filing 20

ORDER denying 19 Motion for Reconsideration of 18 Order in accord with the attached order. Signed by Judge Richard A. Lazzara on 5/29/2018. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

AMERISURE INSURANCE COMPANY,
Plaintiff,
v.

CASE NO. 8:18-cv-604-T-26JSS

STEPHANIE MING and GERELCO
TRAFFIC CONTROLS, INC.,
Defendants.
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ORDER
UPON DUE AND CAREFUL CONSIDERATION of the procedural history of
this case, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for
Reconsideration and to Abate (Dkt. 19) is denied for the following reasons.
First, although the Court acknowledges that it granted Defendants’ motion to
dismiss on the basis of lack of subject matter jurisdiction without affording Plaintiff an
opportunity to respond, the Court’s action was supported by Eleventh Circuit precedent.
As a panel of the Eleventh Circuit recently reaffirmed, “[w]hen a district court lacks
subject matter jurisdiction, it has no power to render a judgment on the merits and should
dismiss the complaint ‘sua sponte if necessary, pursuant to Fed. R. Civ. P. 12(h)(3).’”
Hallett v. Ohio, 711 F. App’x 949, 950 (11th Cir. 2017) (unpublished) (quoting and citing
Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1240 (11th Cir. 2003); see also

DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1303 (11th Cir. 2008) (vacating
alternative holding of district court, which reached the merits, because it was without
jurisdiction). Based on the state of the record before the Court, there was no question that
the Court lacked subject matter jurisdiction by virtue of the fact that the Florida state
court had yet to render a final judgment awarding damages to Defendant Ming in excess
of Plaintiff’s policy limits. Consequently, consistent with Eleventh Circuit precedent
cited above, the Court had no other alternative but to dismiss the case, “sua sponte if
necessary,” because the Court “ha[d] no power to render a judgment on the merits.”
Second, Plaintiff has offered no evidence in its latest submission that as of the date
of the entry of this order the Florida state court has rendered an excess judgment in favor
of Defendant Ming. Thus, the Court continues to lack subject matter jurisdiction and
continues to lack the jurisdictional power to adjudicate the merits of Plaintiff’s complaint.
Finally, the Court concludes that there is no need to abate this action. Because the
Court dismissed Plaintiff’s complaint without prejudice, it did not render a final judgment
or order on the merits so that Plaintiff is not jurisdictionally precluded from refiling its
complaint if and when the Florida state court renders a final judgment awarding
Defendant Ming damages in excess of Plaintiff’s policy limits. See Hughes v. Lott, 350
F.3d 1157, 1161 (11th Cir. 2003) (stating that “[a] dismissal without prejudice is not an
adjudication on the merits and thus does not have a res judicata effect.”) (citation
omitted); cf. DiMaio v. Democratic Nat’l Comm., 555 F.3d 1343, 1345 (11th Cir. 2009)

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(noting that because dismissal of prior complaint for lack of standing was without
prejudice, plaintiff filed a new complaint to address standing issue). Moreover, given the
requirement imposed by the Eleventh Circuit that when a district court lacks subject
matter jurisdiction its only recourse is to dismiss the case without prejudice, the Court is
not convinced that it has the jurisdiction to abate rather than to dismiss without prejudice.
DONE AND ORDERED at Tampa, Florida, on May 29, 2018.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

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